Appellant Stephen K. Sherwood made multiple timely requests to
proceed pro se. Though Sherwood was mentally competent and duly
advised about the perils of self-representation, the trial court
ordered hybrid representation. This violated the Sixth Amendment.

Facts and Procedural History

In October 1995, 4-year-old Hope James and her mother Alice
Barrett were living in a motel room with Sherwood, who was
Barrett's boyfriend. On October 21, 1995, Barrett left for work at
approximately 6-6:30 p.m., leaving Hope in Sherwood's care.
Barrett spoke with Sherwood by telephone at approximately 7-7:30
p.m., when he called the restaurant where she was working to report
that Hope was ill. Barrett told Sherwood to check Hope's
temperature and call again if Hope's condition worsened. About
half an hour later, Sherwood called again and reported that Hope
was playing and seemed all right. Barrett called Sherwood at
approximately 8:30-9 p.m., and Sherwood said that Hope was
sleeping. Barrett told Sherwood to let Hope sleep on the bed with
him rather than on Hope's pallet on the floor, so that Sherwood
could watch her.

When Barrett returned to the room after work at 1:45-2 a.m.,
she found Hope lying on the bed, entirely covered by a blanket with
just one foot showing. Barrett pulled off the blanket to move Hope
to her mat on the floor, and saw that Hope was blue. Barrett
called 911. Her screams awoke the sleeping Sherwood, who insisted
that Hope's heart was still beating. Emergency medical personnel
were unable to revive Hope. An autopsy showed that Hope had died

of brain damage resulting from blunt force injuries sustained at or
shortly before the time of her death.

On October 22, 1995, Sherwood admitted to police investigators
that, a month prior to the child's death, he had struck Hope hard
enough to cause bruising as punishment for misbehavior. Hope's
mother stated that she had noticed other bruises on Hope's body
after that incident, at times when Hope had been in Sherwood's
care. Sherwood told investigators that Hope had been thrown
against the dashboard of his truck and hit by a falling toolbox
several days before her death, when he stopped suddenly to avoid a
deer. He also said that he had accidentally struck Hope when he
opened a bathroom door, unaware that the child was standing behind
it. He acknowledged that he had been alone with Hope during the
entire time Barrett was at work the night Hope died, but denied
having struck or otherwise injuring Hope that evening.

The prosecutor charged Sherwood with Hope's murder. The State
sought the death penalty, whereupon Sherwood's retained counsel
withdrew. Pursuant to Indiana Rule of Criminal Procedure 24, the
court appointed qualified lead counsel and co-counsel to defend
Sherwood. During the months preceding trial, Sherwood expressed
his dissatisfaction with his appointed counsel, and his objections
to being represented by them. (R. at 4578, 4772, 4812-14, 4838-39.)
The court denied Sherwood's request for substitute appointed
counsel. Thereafter, Sherwood repeatedly requested permission to

Defense counsel filed a motion styled as a "Suggestion of
Incompetency," and the court appointed two psychiatrists (one of
whom was also an attorney) to evaluate Sherwood. Both
psychiatrists concluded that Sherwood was competent to stand trial,
i.e., that he was able to understand the proceedings and to assist,
if he chose to do so, in his own defense. (R. at 5219, 5223.)
Appointed counsel questioned Sherwood in detail regarding whether
he understood that he would be responsible for every stage of his
defense if he elected self-representation, and Sherwood affirmed
his understanding. (R. at 5340-42.) The trial judge alerted
Sherwood to the specific perils of proceeding pro se and advised
him against doing so. (R. at 5364-68, 5394-96.)

At the close of the hearing, the trial judge ruled that the
trial would proceed with hybrid representation, with Sherwood
appearing "pro se and by appointed counsel." (R. at 5907, 6052.)
Sherwood and appointed counsel both objected to this resolution,
with appointed counsel pointing out that the defense theories were
"inherently different" and "totally non-reconcilable and totally
inconsistent." (R. at 5792, 5795.) Sherwood renewed his request to
proceed pro se with standby counsel.

At trial, Sherwood and his appointed counsel did not

coordinate strategy and in fact presented conflicting theories of
defense. Counsel conceded that Sherwood had inflicted the fatal
blows. (R. at 9117, 9123, 9132, 11644, 11676.) In so doing,
defense counsel also conceded that Sherwood's story was untruthful.
(R. at 9116.) Counsel asserted, however, that the action had been
reckless rather than knowing or intentional. (R. at 9128-29.)
Therefore, defense counsel's theory was that, although Sherwood had
committed a lesser offense, such as voluntary manslaughter or
reckless homicide, he lacked the requisite culpability for murder.
(R. at 9128, 11672.) For his own part, Sherwood asserted his
factual innocence. (R. at 9172, 11686-89.)

The jury found Sherwood guilty of murder, and the court
entered a sentence of life imprisonment without parole.

Imposition of Hybrid Representation

The basis of a criminal defendant's right to self-
representation under the Sixth Amendment of the United States
Constitution was articulated in Faretta v. California, 422 U.S. 806
(1975). The Supreme Court held that a State may not
"constitutionally hale a person into its criminal courts and there
force a lawyer upon him, even when he insists that he wants to
conduct his own defense." Id. at 807. The Court went on to say
that "[t]he Sixth Amendment does not provide merely that a defense

shall be made for the accused; it grants to the accused personally
the right to make his defense." Id. at 819. "Unless the accused
has acquiesced in such representation, the defense presented is not
the defense guaranteed him by the Constitution, for, in a very real
sense, it is not his defense." Id. at 821.

In Faretta, the Court recognized that a pro se defendant would
lose the advantage of an attorney's training and experience.
Nevertheless, it held that respect for the individual, which is the
"lifeblood of the law," requires that the accused's choice be
honored "although he may conduct his own defense ultimately to his
own detriment." Id. at 834.

The Court did, however, recognize certain limitations on the
right of self-representation:
[I]n order to represent himself, the accused must
"knowingly and intelligently" forego those relinquished
benefits [traditionally associated with the right to
counsel]. Although a defendant may not himself have the
skill and experience of a lawyer in order competently and
intelligently to choose self-representation, he should be
made aware of the dangers and disadvantages of self-
representation, so that the record will establish that
"he knows what he is doing and his choice is made with
eyes open."

Id. at 835 (citations omitted) (quoting Adams v. United States ex
rel. McCann, 317 U.S. 269, 279 (1942)). A defendant need not
possess technical legal knowledge to knowingly exercise his right
of self-representation. Id. at 836. Defendant Faretta was
"literate, competent and understanding" and was voluntarily

exercising his own free will. Id. at 835. In addition, the trial
court judge had explicitly warned Faretta that he would be held to
the same rules of trial procedure as if he were represented by
counsel, and had advised him that he was making a mistake in
proceeding pro se. Id. at 835-36. Under these circumstances, the
Court held that denial of the right to proceed pro se violated the
Sixth Amendment. Id. at 836.

The Supreme Court shed additional light on the right of self-
representation and its limits in McKaskle v. Wiggins, 465 U.S. 168
(1984). In McKaskle, a defendant was allowed to proceed pro se at
trial, but the court appointed standby counsel to provide
assistance. Id. at 170. The defendant appealed on the basis that
standby counsel had unfairly interfered with his presentation of
his defense. Id. at 173. The Court found that there is no
absolute constitutional bar to the participation of standby
counsel.See footnote
1 Id. at 176. The primary focus in determining whether a
defendant's Faretta rights have been violated is on "whether the
defendant had a fair chance to present his case in his own way."
Id. at 177. Further, "the right to speak for oneself entails more
than the opportunity to add one's voice to a cacophony of others."
Id. The core of the Faretta right is the defendant's entitlement
to preserve actual control over the case he chooses to present to

the jury. Id. at 178.

In McKaskle, the Court recognized that the defendant had in
effect been allowed hybrid representation, since he ultimately
represented himself on some matters and elected to have counsel
represent him on others. Id. at 183. The Sixth Amendment does not
require a trial judge to permit hybrid representation, see id. at
183, but it does allow the trial judge to appoint standby counsel
even over the defendant's protest, so long as the defendant retains
actual control over his defense and his appearance before the jury
as a pro se defendant is not undermined,See footnote
2 id. at 184-85.

In a relatively recent capital case,
Godinez v. Moran, 509
U.S. 389 (1993),
the Court held that the competency standard for
waiving the right to counsel may be not be higher than the
competency standard for standing trial. Id. at 391. The Court
reiterated the longstanding distinction between competence to
choose self-representation, which is measured by competence to
stand trial, and competence to represent oneself effectively, which
the defendant is not required to demonstrate. Id. at 399-400.

At the same time, however, the Court recognized a separate
constitutional prerequisite for waiving the right to counsel, i.e.,
the requirement that such a waiver be knowing and voluntary. Id.
at 400. Whereas the competency inquiry focuses on the ability to
understand the proceedings, the "knowing and voluntary" inquiry
focuses on whether the defendant actually understands the
significance and consequences of his choice and whether the
decision is uncoerced. Id. at 401 n.12. In addition, this Court
has held that the right to represent oneself must be clearly and
unequivocally asserted within a reasonable time before the trial
begins. Hunt v. State, 459 N.E.2d 730 (Ind. 1984).

Therefore, a defendant who is competent to stand trial and who
knowingly, intelligently and voluntarily makes a timely and
unequivocal waiver of counsel is entitled to exercise the right of
self-representation, even in a capital case. Here, Sherwood's
competence to stand trial was properly established, and the trial
court's holding in that regard is not challenged on appeal.
Therefore, under the teaching of Godinez, Sherwood was also
competent to waive representation by counsel. Furthermore,
Sherwood clearly and repeatedly, and without coercion, expressed
his desire to proceed pro se rather than to have appointed counsel

represent him.See footnote
3 (R. at 4814, 4897, 5438-39, 5795.) He explicitly
objected to the court's order that appointed counsel appear on his
behalf and represent him at trial. Throughout the entire trial,
Sherwood at no time acquiesced in the presentation of a defense by
appointed counsel. He therefore manifested the voluntary,
unequivocal and timely assertion of his right of self-
representation that is required.

Because Sherwood was competent to waive counsel, and made
timely requests that were both voluntary and unequivocal, the
remaining question is whether his waiver was knowing and
intelligent. The court reminded Sherwood that his life was at
risk, and Sherwood acknowledged that, if permitted to go pro se,
"whatever happens I can only blame myself." (R. at 4805.)
Sherwood also acknowledged that an individual who elects self-
representation cannot later assert ineffective assistance of
counsel.
(R. at 5019-20);
Carter v. State, 512 N.E.2d 158 (Ind.
1987).

At a competency hearing, Sherwood confirmed that he knew he
would be solely responsible for conducting voir dire, challenging
prospective jurors, making opening and closing statements, making
objections and motions, making arguments, subpoenaing witnesses,
and preserving issues for appeal, at both the guilt and sentencing
phases. (R. at 5340-42.) The trial court cautioned Sherwood that
an attorney would be better at investigation and interrogation,
that Sherwood's incarceration would be a disadvantage in preparing
a defense, and that an attorney would generally have greater
skills. (R. at 5365.)

The court further admonished Sherwood that the State would be
represented by an attorney, (R. at 5366), that Sherwood could be in
the awkward position of questioning himself if he chose to testify,
(R. at 5384), and that Sherwood would have to abide by the same
rules of evidence as an attorney, (see R. at 5394-95). The trial
court advised Sherwood against proceeding pro se. (R. at 5395-96.)
After this colloquy, Sherwood again stated that he voluntarily,
knowingly and intelligently waived his right to counsel, knowing
that the consequence could be death and that the State had superior
resources and experience. (R. at 5415, 5440.) His waiver of
counsel met all the constitutional requirements.

right of self-representation. In her opening statement, lead
defense counsel stated that Sherwood did "a very reckless act . .
. with disregard totally for the harm that it would cause." (R. at
9081.) Sherwood's objection that "[s]he's convicting me already in
the presence of the jury" was overruled.See footnote
4 (R. at 9083-84.) In
Sherwood's opening statement, he asserted that he had not inflicted
the fatal injury. (R. at 9172.) In the defense closing statement,
appointed counsel conceded that Sherwood had told a story no one
could believe, (R. at 11652), and admitted on Sherwood's behalf
that he had committed reckless homicide or involuntary
manslaughter, (R. at 11672). Sherwood's motion for mistrial was
denied.

In Carter, 512 N.E.2d 158, this Court anticipated such a
problematic scenario. There, a defendant who requested and
received hybrid representation later claimed ineffective assistance
of counsel. Id. at 161. The conviction was affirmed on the basis
that the defendant had, in fact, controlled his own defense. Id.
at 164. In that opinion, we recognized that reluctance to permit
a defendant to act as co-counsel "may be due, at least in part, to
the problems inherent in hybrid representation," Id. at 162 n.1.,
one of which is the potential for repetitious or contradictory

defense efforts,
id. at 164
. This prophecy was fulfilled in the
current case. Furthermore, this Court expressed concern that a pro
se defendant who does not remain "the captain of his defense team,"
id. at 163, may enjoy the legal benefits of self-representation
without the accompanying burden of surrendering any later claim of
ineffective assistance of counsel, and might even seek to undermine
his appointed counsel's strategy to create an appealable error, id.
at 164.

The record demonstrates that the trial court's decision
regarding hybrid representation, and appointed counsel's strategy
for avoiding imposition of the death penalty despite daunting
inculpatory evidence, were well-meant efforts to protect Sherwood's
interests and, indeed, to save his life. The federal case law,
however, makes it clear that these efforts violated the Sixth
Amendment.

Because Sherwood was competent to stand trial; because he made
a knowing, intelligent and voluntary waiver of his right to counsel
in a timely and unequivocal manner; and because he was denied
actual control of the case presented to the jury, the trial court's
imposition of hybrid representation violated the standards of
Faretta and its progeny.

Finally, the U.S. Supreme Court has said that "[s]ince the
right of self-representation is a right that when exercised usually

increases the likelihood of a trial outcome unfavorable to
[Sherwood], its denial is not amenable to 'harmless error'
analysis. The right is either respected or denied; its deprivation
cannot be harmless." McKaskle, 465 U.S. at 177 n.8.

Therefore, denial of the right of self-representation in this
case was an error that requires reversal.

Conclusion

We reverse and remand for a new trial.

Dickson, Sullivan, Selby, and Boehm, JJ., concur.

Attorney for Appellant Attorneys for Appellee

Eric K. Koselke Jeffrey A. Modisett
Special Assistant to the Attorney General of Indiana
State Public Defender
Indianapolis, Indiana Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, IN 46204-2770
___________________________________________________________________

SELBY, J., concurring with separate opinion.
I join in the majority opinion but write separately to make a
particular observation about pro se litigation. A capital
defendant's request to proceed pro se places the trial judge in a
most untenable position. The judge must effectuate the defendant's
right to self-representation as well as the defendant's right to a
fair and meaningful trial. Both of these rights are of
constitutional dimension and, indeed, the United States Supreme
Court has declared that the right of self-representation is
fundamental, holding that, Like others, prisoners have the

constitutional right to petition the Government for redress of
their grievances, which includes a reasonable right of access to
the courts. Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194,
3198 (1984) (citation omitted). I believe that equal access to
justice would be better served if our entire judicial system were
better equipped to handle pro se litigation.

Footnote: 1
Specifically, the Court held that under the facts of the case, any
unsolicited intrusions were too few and too minor to have undermined the
defendant's appearance before the jury as one representing himself. McKaskle,
465 U.S. at 187.Footnote: 2
This Court has previously stated that the recommended protection for a
pro se defendant is standby counsel. German v. State, 268 Ind. 67, 73, 373
N.E.2d 880, 883 (1978). On the other hand, appointment of standby counsel is
discretionary; a defendant who proceeds pro se has no right to demand the
appointment of standby counsel for his assistance. Kindred v. State, 521
N.E.2d 320, 323 (Ind. 1988). The trial court may have
the discretion to
direct standby counsel to take over at any point during the proceedings if the
defendant's conduct becomes inappropriate, German, 373 N.E.2d at 883, though
our Court's conclusion on this point may have been superseded by McKaskle.
Footnote: 3
It has long been established that
a defendant does not have a right to
appointed counsel of his own choosing. Moore v. State, 557 N.E.2d 665, 668
(Ind. 1990). Therefore,
denial of a defendant's request for substitute
appointed counsel will not by itself render a decision to proceed pro se
involuntary. Here, the trial court, on multiple occasions, addressed
Sherwood's complaints about his relationship with appointed counsel and their
handling of his case, and attempted to assuage his concerns. (R. at 4575-91,
4689-702, 4765-839.) After hearing Sherwood out, the court concluded that
appointment of substitute counsel was not required and would only delay the
proceedings unnecessarily. (See R. at 4895-97.) The court's conclusion was
borne out by a psychiatric expert who examined Sherwood and testified that,
given Sherwood's intractable attitude toward the conduct of his defense,
substitute counsel would be unlikely to meet with Sherwood's approval either.
(R. at 5611-12.)Footnote: 4 Intertwined in this case is the issue of whether the defense of
culpability for a lesser included offense, asserted over Sherwood's
objections, improperly usurped his right to decide what plea to enter.
Because this issue is not raised on appeal, and because we find the imposition
of hybrid representation and resulting presentation of conflicting theories of
defense dispositive, we need not and do not address this question.